FEBRUARY 6, 2011 VOLUME 18 NUMBER 5
What can a parent do to ensure continuing care for his or her adult child with a disability? That was the dilemma facing Californian Earl Blacksher in the late 1980s. His daughter Ida McQueen lived with him in the family home in Oakland. She was developmentally disabled, and she received Supplemental Security Income (SSI) payments; she had no other resources and Mr. Blacksher’s own assets were largely limited to the home.
Mr. Blacksher signed a will. He directed that Ms. McQueen be allowed to live in the house for the rest of her life, and that the rest of his small estate be placed in trust to help her pay for the care and services that would be required to let her stay at home. He left his two brothers in charge of the estate and the testamentary trust he created.
After the brothers restructured the mortgage on the house, Ms. McQueen could live there on her SSI payments — just barely. When she became ill a decade later she moved temporarily to a nursing facility. With no resources to help pay for in-home care, and with escalating needs, she could not return to the home.
The attorney who had handled the probate in the first place had never been paid, since there was not enough money to take care of her bill. Neither had the brothers been paid for their work in handling the estate. Nor had the real property taxes on the home been kept current. It appeared that there was no choice but to sell the house, pay bills, and distribute any proceeds. The attorney assisted the trustee in listing and selling the house.
After all the bills were caught up there was $90,000 left to distribute. The attorney, apparently reasoning that Ms. McQueen had effectively abandoned her life estate interest in the home by failing to pay taxes and keep payments current, decided that nothing needed to be retained in Mr. Blacksher’s trust, and she arranged distribution of the proceeds to the remaining family members.
Almost immediately a conservatorship was begun to investigate the transaction, and a lawsuit was filed against several family members and the attorney who had arranged the sale and distribution. The lawsuit argued that the net proceeds should have been retained in trust for the benefit of Ms. McQueen. In response, the defendants insisted that it was reasonable to treat Ms. McQueen’s right to use of the house (or proceeds from its sale) as terminated, and that in any event any money she would have received would have simply interrupted her eligibility to receive SSI payments and subsidized care from California’s Medicaid program.
At trial two attorneys testified about the possibility of treating Mr. Blacksher’s trust as a “special needs” trust, which might have allowed Ms. McQueen to have the benefit of the sale proceeds without losing her eligibility for SSI and Medicaid. One expert opined that the option should have been discussed; the other pointed out that Mr. Blacksher’s trust did not qualify as written, and that California law would not have permitted a revision. Ultimately, however, the language of Mr. Blacksher’s testamentary trust was irrelevant — the trial judge precluded testimony about SSI benefits, and the jury found that most of the defendants had participated in taking money from Ms. McQueen. They were ordered to return $99,900 to Ms. McQueen.
One defendant — the attorney — was singled out by the jury for additional penalties. She was the only one the jury found liable for elder abuse, a separate claim under California law (and, incidentally, under the law of Arizona and most, if not all, other states). That did not directly increase the jury’s award against her, but it did have a significant additional effect. California law permits an award of attorneys fees against a party found liable for elder abuse. The attorney was ordered to pay Ms. McQueen’s lawyer’s fees, which totaled another $320,748.25.
The California Court of Appeal considered several arguments but ultimately upheld the judgment, including the effectively quadrupled award against the attorney. Key to the appellate court’s ruling was a finding that it was irrelevant whether Ms. McQueen received SSI or Medicaid benefits, or whether she would have lost those benefits if the terms of her father’s trust had been carried out as written. The judges were also unimpressed by an argument that the attorney acted reasonably in deciding, albeit wrongly, that failure to pay taxes or upkeep on the house effectively ended Ms. McQueen’s interest in the trust. McQueen v. Drumgoole, January 14, 2011.
The litigation involving Mr. Blacksher’s testamentary trust proves what every parent of a child with disabilities already knows: it can be very difficult to come up with a plan that adequately protects your child after your death. Mr. Blacksher’s trust may have been inadequate to the task, but it may be that the basic inadequacy was in the plan itself — there does not seem to have been enough money available to let Ms. McQueen stay in the family home after his death.
What might Mr. Blacksher have done differently? It is hard to be certain on the sparse record in the Court of Appeal, but there are a number of planning questions we might have asked Mr. Blacksher if we had a chance to speak with him before he signed his will, including:
Does the testamentary trust language in your will adequately protect your daughter’s interest in the family home if it has to be sold? It appears that Mr. Blacksher’s will may not have done so — the trust he established may not have been a “special needs” trust.
Do you have a realistic plan about how your daughter’s care can be provided? It appears from the outcome that there were not sufficient assets available to provide in-home care, even if health problems had not intervened to send Ms. McQueen to a care facility.
If a move from the home is inevitable after your death, have you given adequate consideration to alternatives now? Might it be best to look into transitioning your daughter into a suitable placement while you are still able to participate in the selection and oversight of the care home?
How involved — both in terms of time and in financial and other support — will the rest of the family be in caring for your daughter? Most parents recognize the high personal cost of providing full-time care. Did Mr. Blacksher’s family members realize that they would need to provide some of that care after he was unavailable, or did they realize it but lack the resources to do what he had done for years?
For lawyers, the key messages from the McQueen v. Drumgoole case are probably:
The “collateral source” rule, which prevents jury consideration of other payments available to the plaintiff in most civil lawsuits, applies in a case like this to prevent discussion of the SSI and Medicaid benefits a plaintiff might be entitled to receive — even if a successful verdict might eliminate those benefits.
The attorneys fees generated in complex litigation might all be chargeable against an unsuccessful defendant, even if not all of the claims (and all of the defendants) are found liable for any attorneys fee award.
For family members, though, the takeaway message is simpler:
Failure to plan realistically for your child’s care may result in a failed care plan.
Two recent appellate court cases illustrate different aspects of the law’s response to abuse and exploitation of seniors. Taken together the two cases underscore that protection of vulnerable seniors can be a priority of the legal system.
The first case tested California’s law on elder abuse, which permits the courts to (among other things) disinherit a family member or devisee who exploits a senior. Laura Marie Lowrie had accumulated an estate of approximately $1 million during her 89 years. During the last ten years of her life her son Sheldon Lowrie took over more and more of the management of her finances. By the time of her death in 1999 he had gotten her to transfer two houses to him. He had also persuaded her to modify her revocable living trust so that the bulk of her estate would pass to him.
Ms. Lowrie’s granddaughter Lynelle Goodreau believe that her uncle had taken financial advantage of his mother. She brought an action to set aside changes in the living trust, and to secure return of property that should have belonged to the trust.
Ms. Goodreau alleged that her uncle had abused his mother physically and financially. According to her, he isolated his mother from contact with other family members. He taped her telephone handset so that she could not make or receive calls, he locked her security door from the outside so she could not leave her home, and he put a warning sign on the front door instructing social workers and peddlers not to bother her.
Among the choices available to the judge under California’s elder abuse statute was the possibility of ordering that Sheldon Lowrie should be treated as having died before his mother. He was the remainder beneficiary of her trust, and would receive the bulk of her assets under its terms. If he had died before his mother, however, most of the trust assets would pass to Ms. Goodreau.
After hearing testimony from most of the family members, plus neighbors, friends and acquaintances of Ms. Lowrie, the trial judge decided that Mr. Lowrie had taken advantage of his mother. The judge noted that he had stolen hundreds of thousands of dollars from her and from the family business, and that he had bought seven or eight antique automobiles, had paid off his own personal credit card bills, and had accepted “gifts” of most of her physical property.
Based on that testimony the trial judge decided that Mr. Lowrie should be treated as having predeceased his mother. It ordered that he pay Ms. Goodreau $665,623.60 to replace the money he had taken from his mother, plus $250,000 for his mother’s pain and suffering, plus another $50,000 in punitive damages. The California Court of Appeal upheld the judgment and the finding of disinheritance. Estate of Lowrie, April 30, 2004.
Arizona law is similar to the California provision on elder abuse. One alternative available to the courts in extreme cases of abuse, neglect or exploitation is to work a disinheritance of the offender. Just as in the Lowrie case, that would result in the abuser/exploiter being treated as already deceased, and the elder’s property passing to heirs or devisees other than the offender.
In the second elder abuse case reported in recent weeks, a care home operator in Hawai’i was convicted of manslaughter in the death of a resident of her home. The Hawai’i Court of Appeals upheld the conviction, despite her argument that it had not been shown that she intended any harm.
Chiyeko Tanouye was eighty years old at the time of her death. She had lived in an adult care home operated by Raquel Bermisa for only a few months, but her condition had worsened dramatically and quickly.
Ms. Bermisa took Ms. Tanouye to her doctor’s office on June 30, 1999, for treatment for a urinary tract infection. During that visit the doctor noted that Ms. Tanouye had a decubitus ulcer (a bedsore) which, at about five centimeters in size, required attention. He instructed Ms. Bermisa to wash the ulcer with Betadine cleaning solution and to apply Intrasite gel daily, and to bring her back a week later for a follow-up visit.
When Ms. Bermisa returned with Ms. Tanouye on July 7, the decubitus ulcer had not cleared up. The doctor referred her to a specialist for further treatment.
Ms. Tanouye was seen by the specialist just two days later, but her condition had worsened markedly. He saw two decubitus ulcers rather than one, and both had areas of dead tissue. He cleaned the ulcers, applied sterile gauze moistened with saline solution, and instructed Ms. Bermisa to change the dressing two or three times each day. He scheduled another follow-up visit for a week later, but Ms. Bermisa and Ms. Tanouye did not return.
Instead, Ms. Bermisa arrived at the Pali Momi emergency room a month later with Ms. Tanouye in the front seat of her car. She told nurses at the emergency room that she had been out shopping with Ms. Tanouye and the other residents of her care home, and that something was wrong with Ms. Tanouye.
Something was indeed wrong. Ms. Tanouye’s decubitus ulcers had grown much larger, and they showed no signs of treatment. The smell from the ulcers was overpowering to the nurses, and they noted that one of Ms. Tanouye’s heels was also ulcerated. They tried their best to treat Ms. Tanouye but she died the next day.
Ms. Bermisa was charged with manslaughter for her apparent failure to provide adequate care. At her trial testimony was offered from an adult protective services worker, the nurses who provided care to Ms. Tanouye during her final hospitalization, the doctors who had treated her and directed Ms. Bermisa how to care for her, and the trainer who had given Ms. Bermisa instruction leading to her certification as a Certified Nurse’s Aide (CNA). The jury convicted her, and she appealed.
The Hawai’i Court of Appeals affirmed Ms. Bermisa’s conviction. Although she argued that the prosecutor had not shown that she had any intention to harm Ms. Tanouye, the court found that she had acted recklessly, and that she had a duty to provide adequate care. The court also noted that Ms. Bermisa was properly trained to recognize the problems Ms. Tanouye was suffering, and she should have recognized the importance of maintaining the treatment regimen directed by Ms. Tanouye’s physicians. When she failed to follow through with proper treatment, and apparently failed to appreciate the significance of her resident’s condition, she violated her duties as a caretaker. State v. Bermisa, May 7, 2004.
Sherri K. apparently thought her stepfather Clifford H. (the court opinion does not disclose family names) needed protection. She asked the California courts to appoint her as conservator, and she alleged that there was an emergency requiring immediate action. Without giving notice to her stepfather or other family members she scheduled a hearing and secured appointment as temporary conservator of Clifford’s person and estate.
The court’s order specifically directed the other family members to surrender Clifford to Sherri’s custody, but they refused. In response Sherri filed a request that the rest of the family be held in contempt of court for refusing a valid court order. She also filed petitions alleging that Clifford had been subjected to elder abuse, and the court then issued orders restraining the family and directing them to appear to “show cause” why the orders should not be made permanent.
Although unusually nasty and litigious, the tragic story of Clifford H. would not, unfortunately, be all that uncommon—except that Sherri is herself an attorney. The legal proceedings that followed demonstrated that lawyers have a special responsibility to see to it that the courts are not misused.
Sherri’s mother Jean H. hired a lawyer of her own and objected to the conservatorship and to the temporary orders. The court appointed an attorney to represent Clifford, and that attorney also objected. Sherri ultimately withdrew some of her requests, and the court denied the rest. Then the question of attorney’s fees had to be resolved.
Though she had been unsuccessful, Sherri sought over $45,000 in fees and costs for herself and her attorney. Meanwhile, her mother and siblings asked the court to order Sherri to pay their attorneys’ fees of almost $18,000.
The court ordered Sherri to pay her own attorney’s fees, but did allow her $15,000 in fees and costs to be paid from her stepfather’s estate. At the same time, however, the court ordered Sherri to pay $10,000 of her mother’s and siblings’ attorneys’ fees.
Sherri appealed, arguing that she should have been awarded all her own attorney’s fees and not required to pay any of her family’s fees. The California Court of Appeals forcefully disagreed, going so far as to rule that her appeal was frivolous.
In addition to the earlier order Sherri was directed to pay over $10,000 more in fees to her mother to cover the costs of the appeal. Noting that the conservatorship and the appeal were obviously motivated by Sherri’s hatred of her family rather than a desire to achieve a just result, the court also ordered her to report herself to the State Bar of California for disciplinary action. Conservatorship of Clifford H., November 21, 2003.
Financial exploitation of vulnerable seniors is widespread. The problem even arises in controlled settings like adult care homes and nursing homes. That is why the State of Missouri took some extraordinary steps to try to curb financial abuses in institutional settings.
The Missouri Department of Health and Senior Services maintains a list of facility employees who are known to have taken money from residents, and circulates the list among state agencies and institutions. Nursing facilities are prohibited from hiring any individuals on the Department’s list, so placement on the “employee disqualification list” can effectively end the career of a care provider.
Though maintenance of the list is clearly intended to help reduce the epidemic of exploitation of institutionalized seniors, a Missouri court recently decided that the Department’s interpretation was too broad. The challenge arose from the listing of Beverly Ann Wells, the admissions coordinator of social services at The Williamsburg extended care facility in Columbia, Missouri.
In 1999 Williamsburg resident Chester Riggins, then 91 years old, signed a series of small checks made out to Williamsburg employees. One of those checks, for $100, was to Ms. Wells. Though no one knew of the check to Ms. Wells at the time, it came to light a year later when Mr. Riggins applied for Medicaid.
When confronted, Ms. Wells first denied that she had received any money from Mr. Riggins. She soon acknowledged that she had gotten the check, signed it and deposited it in her own bank account, but she insisted that Mr. Riggins had simply been repaying her for numerous small expenditures she had made for him, and for errands she had run on his behalf.
When the check came to light Ms. Wells was fired from her position at The Williamsburg. The State then decided to put her name on the employee disqualification list, not for misappropriating Mr. Riggins’ money but for failing to report the payment, in writing, as required by state law. Ms. Wells appealed the decision to put her name on the disqualification list.
The Missouri Court of Appeals ruled that the list was supposed to include only individuals who had actually misappropriated residents’ money. The Court refused to permit her inclusion for failure to file a written report of the payment. The Department had not found that Ms. Wells actually misappropriated Mr. Riggins’ funds, so inclusion of her name on the employee disqualification list was not justifiable. Wells v. Dunn, May 20, 2003.
Arizona does not maintain a list like Missouri’s employee disqualification list. Arizona law does require the Attorney General to maintain a public list of individuals who have been sued for elder abuse, but that list is not readily available.
Financial exploitation of vulnerable seniors is hardly a new problem, but both the frequency and the severity of abuse have increased dramatically in recent years. Many seniors (or their concerned friends and family members) turn to the legal system for help and protection. Sometimes protectors become abusers themselves. That was the case with New York attorney Charles Butin.
Mr. Butin was ultimately disbarred by the New York Supreme Court, Appellate Division—but not until he had taken tens of thousands of dollars belonging to at least three women he had been hired to help protect.
Martha Reifforth hired Mr. Butin to initiate guardianship proceedings with regard to her close friend Marie Edelman in 1996. Ms. Edelman had become unable to handle her own affairs, but not before she had signed powers of attorney giving Ms. Reifforth authority to take care of her financial affairs. Mr. Butin told her that she needed to sign a number of blank account withdrawal forms, and then began transferring Ms. Edelman’s money into his own office bank account.
Ultimately Ms. Reifforth fired Mr. Butin and hired a new lawyer to try to recover funds still in his control. Although he had transferred at least $144,300 into his own accounts by the time of Ms. Edelman’s death in July, 2000, Mr. Butin only had $38,036.60 left in his office account—and he had made no distributions for Ms. Edelman’s benefit. He estimated that his fees for work done on her behalf totaled between $25,000 and $75,000, though he had never submitted a bill.
In two other cases Mr. Butin represented guardians of elderly, incapacitated women, and took charge of handling their accounts. In both cases he paid himself substantial fees without getting approval from his clients or the court, and failed to pay the women’s bills on time. In one case his client was held in contempt and sentenced to five days imprisonment, though the judge later set that sentence aside when it became apparent that Mr. Butin’s client was unaware that he was in serious trouble with the courts—because Mr. Butin did not tell him about the contempt proceeding.
Mr. Butin asked for a lesser punishment, pointing out that he had been active in bar association activities, had donated many hours of free legal time, and had emotional and family problems that contributed to his admittedly wrongful behavior. In ordering his disbarment the court noted that he “targeted clients who were likely to be vulnerable to his manipulation, including the elderly or the incapacitated.” In the Matter of Butin, November 18, 2002, as amended March 12, 2003.
Abuse of the elderly may be physical or financial. In some cases caretakers or family members may simply have failed to provide adequate care and that neglect may have lead to injury (or even death). Most elder care professionals recognize that all three kinds of misconduct are seriously under-reported, making it difficult to accurately determine how common the problems actually are. That difficulty is exacerbated by adult protective organizations’ inclusion of “self-neglect”—the failure of a frail elder to seek adequate care for themselves—in the statistical mix.
Two recent California criminal cases are evocative of the kinds of physical abuse and neglect inflicted on elders. Both arise because the defendants, though acknowledging that they were guilty of criminal acts, sought to reduce the severity of sentences imposed for their crimes.
David Wallace Taggart, who lived in Ventura County, had a problem with cocaine. He had been in trouble several times as a result of his drug addiction and drinking, and he was on probation for a drunk-driving offense when he embarked on a three-day cocaine binge, leading to a delusional state and a violent outburst. He began by tearing up his girlfriend’s house, then jumped into his truck, drove it into the fence of his elderly neighbors the Thompsons, and attacked both the wife and husband without any provocation. He ended up striking Mr. Thompson with a frying pan, knocking him out.
When Mr. Taggart was sentenced to nine years in prison he appealed. His argument: he was delusional at the time of the attacks and that should have mitigated his sentence. The Court of Appeals noted that he had a history of violence and drug abuse, and declined to reduce his sentence. People v. Taggart, September 19, 2002.
Nicholas Hayes Raye lived in Napa County. He had befriended an elderly woman, Helen Johnson, and moved in with her, helping her with small household chores and projects. As Ms. Johnson’s ability to take care of herself deteriorated Mr. Raye became more and more responsible for her care. After Mr. Raye noticed open sores on Ms. Johnson’s back he called 911, and state social services workers became involved.
Despite repeated attempts to get Mr. Raye to turn Ms. Johnson in her bed, feed her adequately and keep her wounds clean, he did not seem to be able to cope with his landlady’s condition. Instead, he chased nurses and social workers out of the house. Ms. Johnson’s condition worsened, and she died at home a few weeks after Mr. Raye’s care began.
Mr. Raye obviously suffered from mental problems of his own, but he was convicted of elder abuse and sentenced to one year in jail and five years of probation. He appealed because, among other things, he objected to the prosecutor introducing evidence that he had also taken financial advantage of Ms. Johnson prior to her physical condition worsening. The Court of Appeals upheld Mr. Raye’s conviction, finding that the evidence tended to show the relationship between Mr. Raye and Ms. Johnson, and that any error was harmless. People v. Raye, September 19, 2002.
When a loved one is institutionalized, family members usually do not have the skills and information necessary to closely monitor the quality of care. They usually rely heavily on the advice of the patient’s physician to direct the course of treatment. In those cases where the physician becomes part of the problem, it may be extremely difficult for family members to respond.
Girtha Mack resided in the Covenant Care Nursing and Rehabilitation Center in California. Her attending physician, Dr. Lian Soung, supervised her medical care at Covenant. Ms. Mack’s children were actively involved in her care, and regularly checked with both the nursing home and Dr. Soung.
According to her children, Ms. Mack was left in a bedpan for 13 consecutive hours and developed untreatable Stage III bedsores. Dr. Soung and the nursing home allegedly concealed that fact from the children for weeks, and refused to permit them to inspect the bedsores until the nursing home ombudsman intervened on their behalf.
Dr. Soung opposed hospitalization for Ms. Mack, insisting that the care she was receiving at the nursing home was appropriate. Two months later, Ms. Mack’s condition worsened, and Dr. Soung abruptly abandoned her as a patient. He refused to respond to requests for hospitalization by the nursing home staff. Ms. Mack died a few days later.
California law, like that of Arizona and other states, provides special protection against abuse, neglect or abandonment of elderly or dependent adults. Ms. Mack’s children brought a lawsuit against Dr. Soung, alleging that he had abused and neglected Ms. Mack. They also charged Dr. Soung with intentionally inflicting emotional distress on the family.
Dr. Soung persuaded the trial court to dismiss both complaints against him, and Ms. Mack’s children appealed. The California Court of Appeal agreed that the action for intentional infliction of emotional distress should be dismissed, but returned the case to the lower court for a trial on the neglect charge.
The court noted that the California law on abuse applies to “care custodians” and not physicians. The section of the law dealing with neglect, however, includes health care providers such as physicians.
By using the neglect statute, Ms. Mack’s family apparently hoped to accomplish two things. First, the action would not be governed by rules applied to medical malpractice lawsuits. Second, the possible recovery from Dr. Soung is larger because of the neglect statute’s enhanced penalty provisions. Now the Mack family will be able to pursue their litigation under that neglect statute. Mack v. Soung, May 17, 2000.
Arizona’s law is similar to that in California, but would be even easier for Ms. Mack’s children to apply. It covers “any person who has been employed to provide care” to a “vulnerable” adult. The language of the Arizona statute is unusually broad in a number of ways, including the definition of a “vulnerable” adult (“an individual who is eighteen years of age or older who is unable to protect himself from abuse, neglect or exploitation by others because of a physical or mental impairment”). Like California’s law, the Arizona statute provides for the possibility of punitive damages.
Physical, sexual, mental and emotional abuse of elderly and vulnerable adults is a growing problem not only in Arizona, but around the world. Such abuse is also a crime. Even the failure to report elder abuse may be a crime in some circumstances.
Arizona law particularly protects “vulnerable” adults. An adult is deemed vulnerable when he (or she) “is unable to protect himself from abuse, neglect or exploitation by others because of a physical or mental impairment.” [Arizona Revised Statutes section 46-451(A)(10)]
Adult Protective Services, the Arizona state agency charged with responding to allegations of abuse, neglect and exploitation, reports that actual abuse appears to be less common than either neglect (including “self-neglect”) or financial exploitation. Still, the incidence of abuse is high and growing.
Who is abusing seniors? The classic profile of an abuser, according to experts, includes the following elements:
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The abuser is usually a son of the victim. Abuse by strangers is relatively rare, and when it does occur is almost always committed by a caregiver.
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The abuser is also usually unemployed and financially dependent on the victim. In fact, the most common term used to describe the individuals who become abusers is “lazy.”
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In addition, the abuser frequently has a drug and/or alcohol problem, and may also be addicted to gambling.
Some professionals are required by Arizona law to report even suspicions about abuse, neglect and exploitation. Physicians, psychologists, dentists, social workers and police officers are all required to file reports whenever they have a “reasonable basis” to believe that abuse, neglect or exploitation has occurred. Failure to make a report is itself a misdemeanor, and could lead to loss of licensure or other penalties.
Reports of abuse (like reports of neglect and exploitation) can be filed with Adult Protective Services or the local police or sheriff’s department. The law requires those reports to be filed immediately by telephone or in person, and the initial report must be followed up with a written report within two working days.
In order to make reporting abuse, neglect and exploitation simpler Adult Protective Services has established a statewide toll-free telephone number. Initial telephone reports can be filed by calling APS at 1-877-767-2385. Those with hearing impairments can call a special toll-free number at 1-877-815-8390.
Arizona is not the only state with a toll-free, centralized reporting number for elder abuse. Contact information for other states can be located at the National Center on Elder Abuse website at www.gwjapan.com/NCEA/report/index.html.
Abuse is often difficult to detect. Symptoms of an abusive relationship often (but not always) include dependence on the abuser, “hovering” by the abuser, isolation of the victim from friends and family, recent changes in behavior and/or spending patterns, and general anxiety on the part of the victim.
In the absence of a detailed employment agreement spelling out the grounds for discharge, most employees can be fired for any reason at all. Sometimes, however, notions of public policy override the ability of an employer to discharge an employee.
Jane Hausman worked for the St. Croix Care Center, a nursing home in Prescott, Wisconsin. She was the director of social services and one member of a five-person team charged with seeing to it that St. Croix’ patients received proper care. Beginning in 1992, she and some of the other members of her team became concerned about that quality of care.
In internal memos, Ms. Hausman detailed what she thought were shortcomings in patient care at St. Croix: patients falling from bed, staff members failing to respond to cries for help, disrespectful treatment of patients, improper diets and a general failure to investigate injuries and possible mistreatment. Over the course of nearly a year, Ms. Hausman saw little change in the treatment of her patients.
In March of 1993, Ms. Hausman contacted the regional Ombudsman for nursing home care, and ultimately requested an external investigation. Three months later, St. Croix fired Ms. Hausman and one other staff member. Both brought suit to recover their jobs and to secure damages for what they contended was a wrongful discharge.
St. Croix turned the claim over to its insurance company, St. Paul Insurance. The insurer argued that the policy was intended to protect patients, and that even if an employee was wrongfully discharged it should not have to pay any of the damages.
Meanwhile, the nursing home itself argued that Ms. Hausman was an “at will” employee—that she could be discharged for any reason or for no reason at all. The Wisconsin Supreme Court disagreed, citing the public policy interest in protecting nursing home residents from neglect or abuse. Furthermore, ruled the court, Ms. Hausman had a duty imposed by her state social work license, and she could not be fired for discharging that duty.
Now the Wisconsin Court of Appeals has decided that Ms. Hausman can recover her damages from St. Croix’ insurance company. The policy covered anyone injured by St. Croix “interfering with the rights provided to a person by a patient’s bill of rights or any similar law,” and the court reasoned that a Wisconsin law prohibiting retaliation against employees for reporting neglect was a part of the patient’s bill of rights, even though it protected employees rather than patients. Not only did Ms. Hausman prevail against St. Croix, but her claim was also covered by the facility’s insurance. St. Paul Fire and Marine Insurance Co. v. Hausman, October 5, 1999.
Last week in Phoenix, the Maricopa Elder Abuse Prevention Alliance hosted a two-day seminar on prevention of abuse, neglect and exploitation of the elderly. Speakers ranged from nationally-known advocacy leaders to local social service and legal practitioners.
Jeff Calvert, coordinator of the Alliance, listed some of the warning signs of abuse, distinguishing between physical signs (burns, bruises, decubiti, malnutrition, etc.) and behavioral signs. Calvert noted that many behavioral conditions may exist in elders not subjected to abuse, but that they may also indicate something is amiss. His list included:
Agitation, anxiety
Withdrawal
Isolation
Confusion
Fear
Depression
Anger
Disorientation
Resignation
Hesitation to talk openly
Implausible stories
Non-responsiveness
Donna M. Reulbach, director of a Massachusetts program to prevent financial exploitation by involving bank tellers and officers, described her agency’s efforts with banks. She also listed some of the indicators that financial professionals can use to recognize exploitation. The elder customer may be:
accompanied by a stranger who urges large cash withdrawals
in the company of family members who appear to speak for the elder and make all decisions
nervous or afraid of the person accompanying them
giving implausible explanations about financial matters
unable to remember transactions
fearful that they will be evicted (or sued) if money is not given to a caregiver
isolated from family or supports (or isolated from family other than the relative accompanying them to the bank)
Lori Stiegel, Associate Staff Director of the American Bar Association’s Commission on Legal Problems of the Elderly, described national trends in prevention and punishment of abuse, neglect and exploitation. She noted that Arizona’s recent inclusion of “emotional abuse” in its criminal statute, coupled with the broad definition of “vulnerable adults” as the group entitled to special protection, made Arizona one of the more progressive states in dealing with problems of abuse, neglect and exploitation.
Phoenix prosecutors Terri Clarke and Pamela Svoboda, together with Phoenix Police Lieutenant Ken Tims, described the goals of and problems encountered by a concerted program to prosecute abusers. Their most notable concern: the difficult in prosecuting cases where the victim may be incapacitated, ill, or deceased, or may now be denying any abuse took place. They noted that abused elder women may commonly suffer from low self-esteem, come from traditionalist backgrounds, demonstrate “learned helplessness” and see their own role as keeping the peace between the abuser and the rest of the family (or society).
Phoenix Doctor Walter J. Nieri noted that many instances of abuse and neglect (as well as some examples of financial exploitation) come from long-term care settings. While nursing homes are closely regulated, and the possibility of undetected abuse is consequently lower, adult care homes are much more numerous and subjected to less state monitoring. He also pointed out that much abuse and neglect can be traced to caregiver stress, and provided a checklist for assessment of the level of stress in individual cases.
Susan Aziz and Chayo Reyes described the Los Angeles Fiduciary Abuse Specialist Team, a multi-agency task force established to combat the “crime of the nineties:” elder financial abuse. The three-year-old program involves Police, Public Guardian, Adult Protective Service and Probate Court representatives, among others. The Team conducts training sessions and focuses on fiduciary abuse.
